A recent court case: When “vested” doesn’t mean “payable”

It is not often that an estate I have administered, and where necessary defended in my capacity as executor, finds its way into reported case law. I am grateful this one did.

This judgment (McHardy v Marsh NO and Another – Case No. 153924/2025 – KZN Division, Durban) at its core addresses a common but often misunderstood question:

When does a beneficiary’s right become enforceable?

The background

The deceased made thoughtful provision for his life partner, Ms Violet Ann Murphy McHardy.

In terms of the will:

• A property in a residential estate in Ballito, KwaZulu Natal formed part of the residue and was left to a testamentary trust
• Ms McHardy was granted a lifelong usufruct over the property (a usufruct is a legal right that allows someone to temporarily use, live in, and profit from another person's property, provided they maintain it and do not damage or destroy it. You can watch this video on usufruct here.

The intention was clear: the trust would maintain the property and support her financially, including generating rental income if she needed to relocate.

Over time, she moved first to a smaller unit and later into frail care. During this period, the property was rented out, and the income generated was applied in a manner that afforded her a limited indirect financial benefit under arrangements implemented by the previous executor. Following the death of the original executor, I was appointed as executor. Those arrangements ceased, and the administration of the estate thereafter continued in accordance with the prescribed legal process and the provisions of the Administration of Estates Act.

The dispute

The dispute centred on whether the usufructuary was entitled to rental income from the date of death, or only after the estate had been fully administered.

The applicant (Ms McHardy, the person who had a usufruct right in terms of the will) sought:

• Sole control over leasing the property
• Full entitlement to rental income from date of death
• An order preventing the executor from collecting rental

The legal issue

The matter turned on a key distinction:

• Dies cedit: when a right vests.
• Dies venit: when that right becomes enforceable.

In simple terms, a right may exist before it can be exercised.

The positions

The applicant argued that the usufruct vested on death and was immediately enforceable.

In opposing this, the position taken was that while the usufruct vested on death, the enforceability of benefits flowing from it is delayed until the estate administration process is complete. This aligns with established authority and the framework of the Administration of Estates Act.

Executors are required to settle liabilities, account to the Master, and finalise the estate before rights are fully enforced.

What the court confirmed

A right can vest before it is enforceable

The usufruct vested on death, but the right to rental income only became enforceable once the Liquidation and Distribution Account lay open for inspection free of objection.

The will and intention of the testator are central

The court reaffirmed that the starting point is always the wording of the will. Here, the provision for a testamentary trust indicated that benefits were intended to be administered through that structure, supporting a delay between vesting and enforceability.

Non-joinder was fatal

The applicant failed to join other legatees and beneficiaries and legatees named in the will and the contemplated trust who had a direct and substantial interest in the relief sought, as any order granted would have affected the financial position of both the estate and the trust. Their failure to be joined to the proceedings was therefore fatal to the proceedings.

Outcome

The application was dismissed with costs, affirming the executor’s approach.

The significance

This judgment reinforces a key principle we often explain to clients:

There is a difference between having a right and being able to enforce it.

For executors, it confirms:

• The importance of following due process
• The duty to act in the interests of the estate as a whole

For beneficiaries, it provides clarity:

• Rights may arise on death
• But their enjoyment follows a structured legal process

A broader reflection

In conclusion, a will is only as effective as the process that gives effect to it. When properly followed, the testamentary process ensures that creditors are paid, beneficiaries are treated fairly, and the wishes of the deceased are implemented with integrity.

(The attorney in this matter was Fuad Davids and Counsel was Adv Joshua Temlett.)

Daniel Marsh, Founder & MD of Marsh Fidelity, FISA member and FPSA^®